1984 PLP 2558 (CLC)

‑‑‑Ss. 13 8 15‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.30‑‑Second Appeal‑‑Whether notice was or was not served, a pure question of fact‑‑Concurrent finding of two Courts below on point of fact neither arbitrary nor perverse‑‑All relevant evidence taken into consideration‑‑View taken possible on evidence on record‑‑Held, no interference called for in second appeal. This is a second appeal filed by the appellant/landlord. The case of the appellant/landlord is that he is the transferee from the Settlement Department of the property in question which has two storeys. The appellant claims to have purchased the property in auction by the Settlement Department. According to the appellant, a P.T.O. was issued to him on 18th September,1960. The appellant claims to have sent three registered notices under section.30 of the DP Act, 1958, to the three respondents separately. Although it is not apparent from the contents of the ejectment application, on a question from me Mr.Yousuf Khatri, learned counsel for the appellant, submitted that respondent No.1,Gu1 Hassan, was the statutory tenant in respect of the entire premises and he had inducted respondents Nos.2 and 3 on the ground floor of the premises in question and respondent No.1 remained in occupation of the first floor of the premises. Ejectment Application No.5 of 1965 was filed by the appellant against the three respondents. A separate written statement was filed by respondent No.1 and a joint written statement was filed by the respondents Nos.2 and

3. Relationship of landlord and tenant was denied. Respondent No.1 denied that he had received any statutory notice under section 30 of the DP Act, 1958. On behalf of respondents Nos.2 and 3 it was claimed that the notice served upon them did not comply with the requirements of section

30. Preliminary issues were framed. First preliminary issue was whether the appellant was the owner and landlord of the premises in dispute and whether respondents were his statutory tenants. The second issue was whether notice under section 30 was duly served by the appellant on the respondents before the institution of the ejectment application and the third preliminary issue was whether the ejectment application was not maintainable. The finding of the learned Rent Controller by his order, dated 24th October, 1972 was that the appellant was the owner of the premises in question and that the three respondents were his statutory tenants. On issue No.2 it was found after examination of the evidence on record that section 30 notice had not been served upon the respondent No.1. As regards respondents Nos. 2 and 3, it was found that the notices served upon them were not in accordance with section 30 of the DP Act,1958. In the circumstances, by the order dated 24th October, 1972 the ejectment application was held to be not maintainable and it was dismissed. The appellant filed Civil Miscellaneous Appeal No.56 of 1972, which was also dismissed by order, dated 30th April, 1977 of the learned Second Additional District Judge, Larkana. The orders of the Rent Controller and the First Appellate Authority have been challenged in the present second appeal. I have heard Mr.Yousuf Khatri, learned counsel for the appellant and Mr. Ramchand Rangwani, learned counsel for the respondents.

2. In view of the submission made by the learned counsel for the appellant before me that respondent No.1 is the tenant in respect of the entire premises and respondents Nos. 2 and 3 had been inducted later on by respondent No.1, the only point which requires consideration in this appeal is whether notice 30 of the DP Act, 1958 had been served upon the respondent No.1 by the appellant. It is an admitted position that the notice had not been received by respondent No.1. The case of the appellant is that the notice was sent under registered cover and respondent No.1 refused to accept the registered cover and as such there was proper service of notice upon the respondent No.1. There is a concurrent finding of fact by the Rent Controller and the First Appellate Authority to the effect that notice had not been served upon respondent No.1. Whether the notice was or was not served is a pure question of fact and there is a concurrent finding against the appellant on this question of fact. However, it was submitted by Mr.Yousuf Khatri, learned counsel for the appellant that on the basis of the evidence on record it had been established that notice had been served upon respondent No.1 and the findings of the Rent Controller and First Appellate Authority are arbitrary and based on non- consideration of relevant evidence and mis-appreciation of relevant evidence. There are two witnesses whose evidence is relevant in this regard, i.e. the postman and postmaster. Irshad Khan (Exh.5) is the postman, who was posted at Shahdadkote at the relevant time. It may be observed that the address of respondent No. 1 was given as 325/1, Ward 'A', Shahdad kote, District Larkana, i.e. the property in dispute. According to evidence of Irshad Khan, he had taken the registered letter for delivery to respon dent No.1 at the aforesaid address at Shahdadkote but respondent No.1 could not be found on the address. He made efforts to deliver the registered letter but respondent No.1 could not be found and then on 31st May, 1965 when he again received the same envelop for delivery to the same addressee he learnt that respondent No.1 was residing at Qubho Saeed Khan (a village). Accordingly the postman made such report on the envelop and returned it to the postmaster. In cross‑examination this witness stated that he did not know respondent No.1 and that he had not taken the statement of any person that respondent No.1 was residing at Qubho Saeed Khan. In my view, this evidence did not establish that the notice had been served upon respondent No.1. The other evidence is that of PW‑2 Ghulam Ali, who wasr the postmaster in Qubho Saeed Khan. He stated that he had received the letter from the post office of Shahdadkote for service on respondent No.1, therefore, he sent a message to respondent No.1 to come and receive the said letter but when respondent No.1 came to know that it was in respect of the property in dispute, he refused to accept its delivery. A suggestion was made that the endorsement had been made later on by the postmaster but the same was denied by him. He stated that the relevant endorsement was made after about ten days. In the evidence given by the respondent No.1 it was denied that he had refused to accept the registered cover. He denied that registered letter was ever attempted to be delivered to him. The evidence of the postmaster was not relied upon by both the tribunals below. Both the tribunals have expressed doubt about the service of notice upon the respondent No.1 on the basis of evidence on record. The view taken by the two tribunals below is possible on the evidence on record and in second appeal I am not inclined to interfere with the concurrent finding of fact arrived at by the two tribunals below. As observed earlier, the question of service of the notice on respondent No.1 was a pure question of fact and a perusal of the two orders of the tribunals below do not show that their finding is arbitrary or perverse.. The evidence of the postmaster as well as postman have been taken into consideration.

3. In the circumstances, I find no merit in this appeal. Second Appeal No.168 of 1977 is dismissed but with no order as to costs. M. B. A. Appeal dismissed.